"Law, Religion & Abortion Law of the United States: A Jewish View" by Michael J. Broyde

Law, Religion & Abortion Law
of the United States: A Jewish View

Michael J. Broyde

This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
If you’d like to check out other articles in this series, click here.

Note: This work is a profoundly revised version intended to be accessible to a secular audience of a recent article of mine with a similar title “What Does Jewish Law Think American Abortion Law Ought To Be?” published by The Lehrhaus on June 28, 2022, for a Jewish law universe as well as a response to some critics. Many technical sources of Jewish law are not noted in this article, but can be found in that article, the response or the articles cited in notes 1 and 6.

Preface

It goes without saying that abortion law in America now is a very raw and emotional topic for many in the United States. Changes in abortion laws do directly affect women’s access to abortion and could very well result in great public health consequences. While there are obviously many aspects to this issue, this paper focuses on a very narrow question: what the secular law regarding abortions ought to be according to Jewish law. It is my hope that this focus on the unique but diverse perspective Jewish law offers on these matters might inspire others to consider new approaches to secular law in other areas in the future.

This article argues that were the Jewish legal community called upon to write an abortion law for the United States, we would support an abortion law that allows people to have abortions during the first two trimesters after a mandatory consultation with their own chosen religious, ethical, or moral authorities, even if we know that this will produce more abortions than is the Jewish ideal. We would support an abortion law that allows people to have abortions even during the final trimester when there is either risk to the woman’s life or health (mental or physical) or if the fetus is not viable. This is because Jewish law views the question through the lens of freedom, not the status of the fetus, since such is disputed in Jewish ethics, law, and tradition.

General ideas of Noahide, Jewish law, and Abortion Principles

With all the ink spilled over the overturning of Roe, and the return of regulatory authority over abortion to the fifty states, it is surprising that not much has been written on this question: What does Jewish law think secular abortion law ought to be?

Neither Roe nor its repeal exactly parallels what Jewish law thinks secular abortion law should actually be. The question of whether states or the national government or the courts have the right to control access to abortion is an issue that the Jewish tradition is completely silent on. Federalism is hardly a Jewish topic!

What, then, does Jewish law want from secular law, both generally and in regards to abortion? If Jewish law could fashion a secular abortion law, what would the law look like?

The Jewish faith, in contrast to many others, is not a proselytizing faith. It does not construct an ideal messianic world in which all obey Jewish law – far from it. It also does not have any particularly strong natural law doctrines that push it to universalize Jewish law. Indeed, unlike many other faiths, Jewish law has a set of laws – not really grounded in Jewish law at all — that it thinks governs conduct by all. Called the “Noahide code” – the laws for the sons of Noah, so to speak – it posits that there are seven basic categories of conduct either obligated or prohibited to all. One of them is the prohibition to murder. The Talmud infer that this prohibition includes the prohibition against abortions for Noahides as a form of murder, either from conception or digitalis or viability or maybe some other point.

Yet it seems clear that when speaking about Jewish law (rather than Noahide law), why and when abortion is prohibited is in dispute:

Some authorities aver that abortion is nearly always non-capital murder and only permitted to save the life of the mother.
Others rule that abortion is never murder until the birth process begins, but some lessor prohibition and permitted for many health and psychological reasons (but certainly not as a method of birth control or for financial reasons).
Others adopt the view that abortion flips from non-murder to non-capital murder in the middle of the pregnancy around viability.

Notwithstanding the great amount of literature on this matter, no consensus has developed within the Jewish law community. No one is sure when abortion is murder or whether the prohibition is the same or different under Jewish or Noahide law. Nonetheless, it is clear that abortion “on demand” or for any trivial reason is not what any version of the Jewish tradition wants. There is an aspect of seriousness in ending a pregnancy in the Jewish tradition, which one recent commentator summarized with the word “holiness,” which is not a legal view but an attitude.

Given the uncertain nature of the prohibition, what should a secular abortion law look like according to the Jewish tradition? My view is that this question revolves around four — somewhat incompatible – ideas about the relationship between secular law and Jewish law.

First, there is no Jewish law obligation for Jews to encourage people to observe the Noahide laws. We do not look at secular law as “God’s law” but as a governance problem.

Second, it is generally a wise idea and good policy to help everyone do the right thing when we are sure that we know what that right thing is.

Third, the Jewish community – as a minority faith in a complex democracy – sometimes is hesitant to speak when the costs of helping others be good are too high.

Finally, abortion is a very hard case, since Jewish law does not have a uniform view of abortion under Jewish law and Noahide law, making a secular law which is both consistent with diverse Jewish law and Noahide law almost impossible.

Given this uncertainty, secular abortion law in the Jewish tradition is best represented as a question of freedom and not of abortion rights. The analysis begins with the question of whether the Jewish tradition even wants Jews to encourage people to observe Noahide law before moving on to consider abortion.

There is no obligation in Jewish law to seek to encourage people to observe Noahide laws, but sometimes it is a wise idea

Lurking in the background of this is an important philosophical question: Is there an obligation under Jewish law to urge the larger society to follow Noahide law? Maimonides (Law of Kings and Their Wars 8:10) seems to indicate that Jews share an obligation to participate and enforce Noahide law, but nearly all other Jewish law authorities express disagreement. Why, we might ask, is there no duty? The simplest answer is jurisprudential: it is a separate system, and we lack jurisdiction. It is no violation of American law to assist in a violation of French law; we are not called upon as good Americans to make citizens of France be “law abiding”. The same is true here. Jewish law scholars have long understood, particularly as a minority community, that meddling in the law of other faiths and other communities to make them “just” – as we understand that word — does not make for good neighbors.

Even as Jewish law sees no technical obligation in most situations to insure that Noahides obey their laws, it might be morally laudatory. God surely smiles on those who seek to help others obey God’s will. For this reason, my teacher and the great modern Jewish law sage and law professor at Yeshiva University, Rabbi Dr. J. David Bleich, forcefully articulates:

Despite the absence of a specific obligation to influence non-Jews to abide by the provisions of the Noahide Code, the attempt to do so is entirely legitimate. Apart from our universal concern, fear lest “the world become corrupt,” as Maimonides puts it, it is also very much a matter of Jewish concern and self-interest. Disintegration of the moral fabric of society affects everyone. Particularly in our age we cannot insulate ourselves against the pervasive cultural forces which mold human conduct. Jews have every interest in promoting a positive moral climate.

But, this is not enough, of course. What is a good climate and idea in one time and place is a bad one in another. Exactly because there is no “specific obligation,” the Jewish community has countless times supported religious freedom for all — civil rights for pagan rites, if you will — rather than to automatically support restrictions that make all “better” in the Jewish God’s eyes. The Jewish community has felt that on the whole, the Jewish community gained from religious freedom, even as others use this self-same religious freedom to sin. This is because the decision by the Jewish community to support the expansion or contraction of civil or political rights in secular law is not a Jewish law discussion and it never has been.

The clearest and most direct example of this can be found in the 1993 case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, where many Orthodox Jewish organizations briefed in support of the right of the followers of the Santeria religion to engage in animal sacrifice as part of their religious worship, which is both a pagan practice explicitly prohibited by Talmudic law and a faith that appears by its theology to be indisputably pagan. We have always held steadfast to the idea that making something lawful as a matter of secular law — even where it was a violation of Jewish law or Noahide law — is no violation of any Jewish law, and thus supporting the rights of pagans to worship as they see fit is completely proper, as well as better for the Jewish community practically.

With this model in mind, we can see that the Jewish tradition would focus in abortion law on ensuring that people have the ability to act consistently with their moral, ethical, and religious world view, rather than force people into a legal regime with a single correct approach.

What should an American abortion law look like according to the Jewish Tradition?

We now finally turn to abortion. What does Jewish law want America’s abortion laws to be?

Because of the uncertainty about the substance of both the Jewish and Noahide views on abortion, it is clear that it would be impossible to write a secular law that is identical for Jews and Gentiles and that permits all the abortions permitted to Jews as a matter of Jewish law, yet prohibits all the abortions prohibited for Gentiles under Noahide law. Such a law cannot be written, unless it makes “faith based rules” that are surely unconstitutional in America.

So what does Jewish law actually want in such a situation? Do we support restricting Jews’ ability to have abortions – as permitted or recommended by Jewish law — in order to encourage Gentile observance of Noahide law? Or do we want liberal abortion laws that permit each to do as their Jewish law authority permits, even as we know that this will allow people to have abortions that violate Jewish law? I favor liberal access to abortion in this situation. As Rabbi Chaim Dovid Zwiebel of Agudath Israel – an advocacy group for Orthodox Jewish interests — articulated in the area of brain death, but whose principle is of general applicability:

The principle of religious accommodation is one that has stood the American Orthodox Jewish community in good stead in a wide variety of secular legal contexts . . . For what is really at issue here is . . . whether it is in the interest of the Torah observant community to combat secular laws that preclude individuals from following the guidance of their individual decisors.

Agudath Israel did not invent this idea. Rabbi Moshe Rabbi Feinstein – the leading Jewish law authority in America — wrote as much 1977:

According to the law of the Torah [Jewish law], it is impossible under any circumstances for even a great Jewish law scholar to force one to deal with the matter of his body and life [soul] with regard to the importance of death, because he believes that he is already like a dead person [close to dying] and has accepted this. No state or government can say that a person must accept their view. Rather this sick person himself and his family need to resolve this matter. That is, if he is not doing anything against the Torah after asking a great Torah scholar’s opinion on this. When our country, the United States of America, does not want to force anyone to violate the laws of the Torah [God forbid], they have to enact a special clause on the law that they pass, that the patient himself and his relatives will not have to what secular law directs if they do not want to because this concerns [only] his body and life [soul]. And in our opinion even more so it would seem that this is not the type of thing that belongs under the government or state at all because it is a private matter to every person alone and it is a matter that concerns the Torah and Halakha of our faith.

Thus, I think that if we were called upon to write an abortion law for the United States, we would support an abortion law that allows people to have abortions during the first two trimesters¹ after a mandatory consultation with their own chosen religious, ethical, or moral authorities, even if we know that this will produce more abortions than is the Jewish ideal for either a Jewish or a non-Jewish society. Consultation with others is a way of seeing holiness rather than convenience in the decision; and, in my view, requiring such consultation is not problematic from a constitutional perspective. We would support an abortion law that allows people to have abortions even during the final trimester when there is either risk to the pregnant woman’s life or serious health (mental or physical) or if the fetus is not viable.

Even beyond the abortion conversation, I think the Orthodox community gains much more than it loses by adopting the basic political model of Rabbi Moshe Feinstein to answer many of these questions. We should not support secular laws that restrict the personal moral choices we make as individuals. As Rabbi Feinstein noted in a homily commemorating the 150th anniversary of the United States Constitution in 1939, a mere few years after he immigrated to the United States:

And so, the government of the United States, which already 150 years ago established its law that it will not uphold or favor any faith but will allow anyone to do as they see fit, and the government will serve only to assure that no one harms another, they are thus following the will of Almighty God, and they therefore succeeded and grew during this time. And, we are obligated to pray for them that Almighty God shall have them succeed in whatever they undertake.

This is true even if Rabbi Feinstein is convinced that most abortions are completely improper as a matter of the Jewish law as he understands it. Rabbi Feinstein does not want secular law used to resolve a Jewish law dispute, even if it resolves it in his favor. Questions about end of life are also matters of non-capital murder and yet Rabbi Feinstein favors secular law accommodation of competing views – including ones that he might consider murder. I think the same is true for abortion. I am not the first to observe this in Rabbi Feinstein’s name. His son-in-law, Rabbi Moshe Tendler, stated in a 1989 interview with the Jewish Review:

My father-in-law, the late Rabbi Moshe Feinstein, felt very strongly that allowing government to legislate in any area of morals and ethics gives them a toe-hold in religion, and if you let them in a little bit, the government will begin to expand its role in this area and start legislating what is proper to teach and what is proper to do in a religious context. Now, Rabbi Feinstein had lived some 10 to 15 years under Stalin and his experience of the Russian government’s total involvement in the religious life of the Jew was so traumatic that he held fast to the idea that we should keep the government away from religion even in those instances where its legislation might seem to be supportive of the Torah [=Jewish] point of view. For Rabbi Feinstein, the complete separation of church and state, was absolutely necessary for the survival of any minority group.

The claim is that freedom is a better alternative for an American Jewry, including American Orthodoxy, than one which suppresses people’s liberty. Restrictions on abortion – while a hard case — fit well into that model, as our religious liberty will be curtailed by abortion restrictions that prevent people from getting abortions recommended by, encouraged by, and sometimes even mandated by Jewish law.

Conclusions

I think my friend Rabbi Yonah Reiss, Chief Justice of the Rabbinical Court of the Chicago Rabbinical Council, expresses my view concisely. He writes:

I think that our main concern as Jews must be that we be able to practice our religion freely. There is no right to abortion in Jewish law, but there are cases, such as when a mother’s life is in danger, when an abortion is unfortunately necessary, and there are other cases, depending upon the stage of pregnancy and the medical or psychological issue in question, when a rabbinic authority might rule that an abortion is permissible. We would want to maintain our religious liberty to implement any such lenient rulings when applicable, and of course to adopt a stringent stand against abortion in cases when it is prohibited according to Jewish law, such as by declining to participate in a procedure that we believe is forbidden. I also believe that it is desirable from our perspective for non-Jews to take seriously the prohibition against abortion that exists for them as well according to Torah law, but that is true regardless of the Supreme Court decision.

If I were asked to propose an abortion law for America that is consistent with Jewish values, I would propose one that allows people to have abortions in the first two trimesters after a mandatory consultation with their own chosen religious, ethical, or moral authorities and, after that, only in situations of significant medical need.

We should not support secular laws that curtail our right to act consistently with our faith in the area of reproduction, even if supporting that freedom does produce abortions that violation either Jewish or Noahide law. ♦

Michael J. Broyde is professor of law at Emory University School of Law, the Berman senior fellow and projects director at the Center for the Study of Law and Religion at Emory University. He is a professor at Emory’s Tam Institute of Jewish Studies, and is the director of the Law Schools SJD program. He was a Fulbright Scholar at Hebrew University and visiting professor at Stanford Law School. His primary areas of interest are law and religion, Jewish law and ethics, family law, and comparative religious law.

Recommended Citation

Broyde, Michael J. “Law, Religion & Abortion Law of the United States: A Jewish View” Canopy Forum, September 26, 2022. https://canopyforum.org/2022/09/26/law-religion–abortion-law-of-the-united-states-a-jewish-view/

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